A Call to Arms: CAIR Must Be Fought - Parts I & II

http://www.newmediajournal.us/staff/h_holzer/03192007.htm

The Fifth Column Henry Mark Holzer
March 19, 2007

Once again CAIR is back in the news. This time it is supporting the just-commenced lawsuit by the “flying imams” against US Airways. In essence, the action contends that the airline violated the imams’ rights by bouncing them off a flight because of their seemingly threatening conduct.

This lawsuit is yet another move in the national security chess game by which CAIR, using the threat of lawsuits and actually suing, intends to silence all those in the United States who oppose the Islamic agenda for America.

Wrapping itself in the flag, invoking the Constitution, and hiding beneath its veneer of a self-styled “civil liberties” organization—modeled on its anti-American mentor and template, the American Civil Liberties Union—CAIR is the preeminent domestic mailed fist of Islam in the velvet glove of purported civil liberties.

Whatever its other activities, CAIR is using the American legal system to intimidate the exercise of free speech, to undermine our homeland defense, and to advance Muslim cultural infiltration of our domestic institutions by seeking special dispensations concerning dress, national holidays, educational textbooks, the content of books, movies, and television, and more.

In addition to its incessant intimidating complaints about the alleged violation of “Muslim Civil Liberties,” CAIR sued the website Anti-CAIR for $1.35 million for “libelous defamation.” It went after a congressman because of a statement he made to a reporter that the organization was supporting a fund-raising arm of a foreign terrorist organization. The CAIR-supported Global Relief Foundation, Inc., sued media defendants for reporting that GRF was a target of a federal investigation into funding for terrorism.

CAIR sued even the Attorney General of the United States and the Director of the Federal Bureau of Investigation, challenging the constitutionality of a Patriot Act document production section. It allowed the FBI to apply to the Federal Intelligence Surveillance Court “for an order requiring the production of any tangible things (including books, records, papers, documents, or other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

Making common cause with the American Civil Liberties Union and other organizations that allegedly conducted regular international telephone and internet communications, CAIR sued the government in a challenge to the National Security Agency's formerly secret program for warrantless interception of international telephone and internet communications.

CAIR and others sued the Department of Justice seeking information about people who had been detained in connection with the government’s investigation of the September 11, 2001 attacks, and the organization filed a friend-of-the-court brief in a civil case involving a body’s disinterment from a cemetery because, it claimed, the trial judge failed to consider the Islam religion’s bar on disinterment of dead bodies.

In one of its most successful notorious intimidations, CAIR forced FOX TV to insert a mollifying pro-Muslim statement by actor Kiefer Sutherland as a preface to an episode of its patriotic, anti-terrorist hit show “24.”

It’s obvious that CAIR, with its national headquarters in Washington, 32 offices nationwide and in Canada, national conferences, professional publicists, slick annual reports, and a formidable litigation operation, is receiving substantial financial support from sources that share its agenda of intimidating Americans’ exercise of speech critical of Islam, weakening our homeland defense, and infiltrating our culture.

The considerable funding for CAIR and its dogged determination to push its “Muslim Civil Liberties” agenda to the limit raises the question of how the organization’s well-financed intimidation and litigation operation can be fought, as it must be.

When CAIR first began its program of intimidation and litigation, I proposed that it be countered with a non-profit 501(c)(3) entity that could raise tax-deductible contributions for the sole purpose of fighting CAIR in court.

Except for a few lawyers who welcomed the idea and volunteered to help, there was no interest.

My decades-long experience as a practicing constitutional and appellate lawyer told me then, and tells me now, that the necessary anti-CAIR, pro-America legal talent is available—and much of it is probably available on a pro bono basis

Why, then, hasn’t this happened?

There are at least two main reasons.

One is simple ignorance. Individuals and organizations that possess the ability to support such an undertaking apparently don’t realize the threat CAIR poses as it uses the American legal system to intimidate the exercise of free speech, to undermine our homeland defense, and to advance Muslim cultural infiltration of our domestic institutions by seeking special dispensations concerning dress, national holidays, educational textbooks, the content of books, movies, television, and more.

The other reason is fear. So far, CAIR’s intimidation/litigation strategy has worked. I know personally individuals and organizations who reasonably calculate that anything they do openly to oppose CAIR will embroil them in a costly, unpredictable legal system. They are, of course, correct.

That said, however, unless enough stalwart Americans — funders and lawyers alike —defend CAIR’s would-be victims, this self-styled “Muslim Civil Rights” organization will continue, unchallenged and successfully, to intimidate and litigate in pursuit of its Islamic agenda.

What CAIR is up to isn’t new, and even a brief look back at how the legal left has tried to use the American legal system illustrates where the Muslim Civil Rights” organization is headed.

For decades, the legal left tried to use the courts in furtherance of their pro-Communist and anti-American agenda. For example, a gaggle of Congressmen sued over the legality of providing military aid to El Salvador (Crockett v. Reagan). English ladies, joined by American Congressmen Ron Dellums and Ted Weiss, sued to enjoin the deployment of cruise missiles in the women’s town. (Greenham Women v. Reagan). Another group of legislators sued to declare the invasion of Grenada unconstitutional. (Conyers v. Reagan). Still other Congressmen sued to force President Reagan to file status reports under the War Powers Resolution. (Lowry v. Reagan). An “ordinary citizen” sued to block military action in Gulf War I. (Pietsch v. Bush). Traitors like Jane Fonda and Tom Hayden, who gave aid and comfort to the North Vietnamese Communists, were counseled by the legal left about how they could travel to Hanoi while avoiding prosecution. Regrettably, they succeeded.

Immediately after the attacks of September 11, 2001, the legal left morphed into a pro-terrorist, anti-American Fifth Column, and aimed their considerable firepower at our government’s attempts to defend America (The Encarta Dictionary defines “fifth column” as meaning “any group of people who give aid and support to the enemy from within their own country.” Those who do are called “fifth columnists.”)

The legal left has now been joined by CAIR’s formidable financing and its ability to purchase all the legal talent it needs to advance its goals. (Some lawyers have no conscience.)

Apart from the Department of Justice, in cases involving the government, who will oppose CAIR?

To be sure, there are some fine conservative and libertarian organizations that litigate on behalf of legitimate personal and property rights issues, among them Judicial Watch and the Institute for Justice. But they have their own defined portfolios, and none of them has the sole mission of fighting CAIR in the courts.

This, then, leaves us to paraphrase English King Henry II, speaking of Thomas Becket, Archbishop of Canterbury (“Who will rid me of this meddlesome priest?”): who will rid the American people of this metastasizing ersatz civil liberties organization, the Council on American-Islamic Relations?

Henry Mark Holzer, professor emeritus at Brooklyn Law School, is a constitutional and appellate lawyer. His most recent book 'The Supreme Court Opinions of Clarence Thomas (1991-2006)' has just been published. He maintains a website at www.henrymarkholzer.com
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(Part II)

A Call to Arms: CAIR Must Be Fought - Part II
The Fifth Column Henry Mark Holzer
March 26, 2007

Last week I wrote an article in these pages entitled A Call To Arms: Cair Must Be Fought. In my article I repeated what I have been saying (and writing) since the Council on American Islamic Relations (CAIR) began attacking the free speech rights of American citizens: that CAIR must "be countered with a non-profit 501(c)(3) entity that could raise tax-deductible contributions for the sole purpose of fighting CAIR in court." Examples of CAIR's court cases, including its most recent on behalf of the "flying imams," were discussed.

As a result of my article, I've been asked exactly how CAIR could be fought in court. There are many ways, and the remainder of this article explains just one of them.

At least 23 states and one territory have statutes known by their acronym SLAPP-"Strategic Lawsuits Against Public Participation." [1] Actually, the laws are known as "Anti-SLAPP" statutes because they protect "public participants" from lawsuits brought by people who want to silence them.

Since the "flying imam" flap originated in Minnesota, I'll use that states' "Anti-SLAPP" statute as my example of what smart, tough lawyers can do to the bullying thugs of CAIR. The statute appears in bold face below; my comments are interspersed.

But before getting to that, I want to set the stage.

A broadcaster urges the FBI to search every mosque in America, a blogger demands the state department deny visas to Muslims, a newspaper editorial insists that the Attorney General prosecute citizen Islamofascists for treason.

Next, on behalf of itself and/or the allegedly injured parties, CAIR sues everyone connected with the incident. Also sued, as in the flying imam case, are "John Does"-other people allegedly connected to the incident whose names are not yet known to the plaintiffs.

These defendants are not powerless. These defendants are not sheep going to slaughter under CAIR's knife. Every one of these defendants, every time, should invoke an available "Anti-Slapp" statute, like this one.

Minnesota Statutes Annotated
554.01. Definitions

Subd 1. Scope. The definitions in this section apply to this chapter.

Subd. 2. Government. "Government" includes a branch, department, agency, official, employee, agent, or other person with authority to act on behalf of the federal government, this state, or any political subdivision of this state, including municipalities and their boards, commissions, and departments, or other public authority.

This is a broad definition of "government." It is meant to include every type of entity and individual. If CAIR or another plaintiff claims that the "government" requirement of Section 554.03 (below) is not satisfied, the likelihood is that the court would interpret this section broadly to embrace, for example, a "division" of an agency and a "representative" of an "official."

Subd. 3. Judicial claim; claim. "Judicial claim" or "claim" includes any civil lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing seeking damages for an alleged injury. "Judicial claim" does not include a claim solely for injunctive relief.

This is an important provision, for two reasons. First, it means that the statute includes every conceivable manner in which a claim can be formulated. However, the statute textually embraces only those claims seeing money damages. Were CAIR for itself or another plaintiff to seek only an injunction-unlikely because injunctions against speech are virtually impossible to obtain-this statute would not be available to the defendant.

Subd. 4. Motion. "Motion" includes any motion to dismiss, motion for summary judgment, or any other judicial pleading filed to dispose of a judicial claim.

This is a standard, unexceptional definition.

Subd. 5. "Moving party" means any person on whose behalf the motion described in section 554.02, subdivision 1, is filed seeking dismissal of an action under this chapter.

This is a standard, unexceptional definition.

Subd. 6. "Public participation" means speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.

This is one of the statute's most important provisions because it broadly embraces speech and conduct so long as its intention is to influence government action (like searching mosques), but not necessarily on behalf of the speaker/actor who has now become a defendant in a SLAPP lawsuit. The only textual limitation in this definition is that the conduct be "lawful" and that the speech and conduct be "genuinely" motivated.

Subd. 7. "Responding party" means any person against whom a motion described in section 554.02, subdivision 1, is filed.

This is a standard, unexceptional definition.

554.02. Protection of citizens to participate in government

Subd 1. Applicability. This section applies to any motion in a judicial proceeding to dispose of a judicial claim on the grounds that the claim materially relates to an act of the moving party that involves public participation.

Notice that four of the terms in this section-motion, judicial claim, moving party, public participation-have been defined in the previous section.

Subd. 2. Procedure. On the filing of any motion described in subdivision 1:

(1) discovery must be suspended pending the final disposition of the motion, including any appeal; provided that the court may, on motion and after a hearing and for good cause shown, order that specified and limited discovery be conducted;

This subsection means that once a defendant who believes he has been sued to punish him for "public participation-that is, for having said or done something allegedly offensive to Islam, CAIR, or any of its interests-makes a motion (i.e., asks the court) to dismiss the case because it is a SLAPP suit, "discovery" stops. In other words, neither party-subject to the statute's proviso that the court can allow limited discovery-can take depositions or seek to obtain documents.

From the defendant's perspective this provision is the proverbial two-edged sword. Although the plaintiff can't harass the defendant by employing the various oft-devastatingly time-consuming tools of discovery, the defendant is unable to dig into the plaintiff's motives and evidence. This is, however, an acceptable price for a SLAPP suit defendant to pay for early termination of a spurious lawsuit.

(2) the responding party has the burden of proof, of going forward with the evidence, and of persuasion on the motion;

This is a crucially important provision (to be read in conjunction with Subsection (3) below). Ordinarily, in civil litigation the plaintiff who has brought the lawsuit has the burden of proof-e.g., that the broadcaster/defendant really did defame the plaintiff.

This said, one would think that when a defendant claimed that the plaintiff's lawsuit was a SLAPP suit aimed at silencing and/or punishing the defendant for something he said or did, the defendant would have to prove that. Not so. Under the statute, when the defendant makes the SLAPP motion to dismiss the case, it is the plaintiff who has the burden of proof. What is that burden? The next subsection contains the answer.

(3) the court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability under section 554.03; and

In other words, CAIR sues, the defendant moves to dismiss the lawsuit on SLAPP grounds, and CAIR must prove-not by the usual, lesser standard of proof by a "preponderance" of the evidence, but by the higher standard of "clear and convincing" evidence"-that the defendant was not immune from suit. We get to that immunity in a moment, once we pass the next subsection.

(4) any governmental body to which the moving party's acts were directed or the attorney general's office may intervene in, defend, or otherwise support the moving party.

This subsection means that the government can, if it chooses, provide legal assistance to the defendant-either by actually becoming a defendant itself, or providing representation or otherwise supporting the defendant (which could include financially).

554.03. Immunity

Lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action is immune from liability, unless the conduct or speech constitutes a tort or a violation of a person's constitutional rights.

This is the core provision of the statute. In the typical CAIR and CAIR-like baseless intimidation case this requirement will not be difficult to satisfy. In my examples, the broadcaster did urge the FBI to search every mosque in America, the blogger did demand the state department deny visas to Muslims, the newspaper editorial did insist that the Attorney General prosecute citizen Islamofascists for treason. There were no ulterior motives-only speech "genuinely aimed...at procuring favorable government action." The same kind of speech used by the John Does in the "flying imam" case to have the airline, backed by government police power, to remove the troublemaking Muslims. Clearly, in both my examples and in the "flying imams" case none of the John Does e ngaged in conduct or speech that constituted "a tort [civil wrong, like negligence] or a violation of a person's constitutional rights."

554.04. Fees and damages

Subd 1. Attorney fees and costs. The court shall award a moving party who prevails in a motion under this chapter reasonable attorney fees and costs associated with the bringing of the motion.

Depending on how far into the litigation the motion to dismiss is made (an important tactical consideration), and given the cost of legal fees today, the amount assessed against the unsuccessful plaintiff could be substantial.

Subd. 2. Damages.

(a) A moving party may petition the court for damages under this section in conjunction with a motion under this chapter.

This section makes clear that not only can the defendant's lawyer(s) obtain attorney fees, but so can the defendant.

(b) If a motion under this chapter is granted and the moving party demonstrates that the respondent brought the cause of action in the underlying lawsuit for the purpose of harassment, to inhibit the moving party's public participation, to interfere with the moving party's exercise of protected constitutional rights, or otherwise wrongfully injure the moving party, the court shall award the moving party actual damages. The court may award the moving party punitive damages under section 549.20. A motion to amend the pleadings under section 549.191 is not required under this section, but the claim for punitive damages must meet all other requirements of section 549.191.

The first sentence of this subsection tracks the previous subsection. However, this subsection adds the power of the court to award punitive damages-which could be substantial since their purpose is not to make the defendant whole (that's what actual damages are for), but instead to punish the plaintiff and serve as a warning to others who also might be disposed to intimidate someone's free speech rights.

554.045. Action in district court

A person may bring an action under this section in state district court against a respondent who has brought a claim in federal court that materially relates to public participation by the person. If the person demonstrates that the respondent's action in federal court was brought for the purpose of harassment, to inhibit the person's public participation, to interfere with the person's exercise of protected constitutional rights, or otherwise wrongfully injure the person, the court shall award the person actual damages and reasonable attorney fees and costs. The court may award the person punitive damages under section 549.20.

This subsection provides that a defendant who is sued in a federal court in a SLAPP case can bring a SLAPP case of his own in a Minnesota court against the person who brought the federal case. Then, the federal court plaintiff becomes the state court defendant-who must somehow get around the "Anti-SLAPP" statute's immunity provision.

554.05. Relationships to other law

Nothing in this chapter limits or precludes any rights the moving party or responding party may have under any other constitutional, statutory, case, or common law, or rule.

This section makes it expressly clear that nothing in Minnesota's "Anti-SLAPP" statute should be understood not to preclude any other legal rights the SLAPP victim might have against the plaintiff.

And there are several such rights.

I'll discuss them in forthcoming articles.


Footnotes:
[1] Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Washington.

Henry Mark Holzer, professor emeritus at Brooklyn Law School, is a constitutional and appellate lawyer. His most recent book 'The Supreme Court Opinions of Clarence Thomas (1991-2006)' has just been published. He maintains a website at www.henrymarkholzer.com

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"The conversion of the entire population to Islam and the extinction of every form of dissent is the ideal of the Muslim State - This is Islamic Peace"

A moderate Moslem is one who sends others blow themselves up.